On 28 May 2013, the Italian Competition Authority (“ICA”) published its decision opening antitrust proceedings against the Italian railways operator Ferrovie dello Stato Italiane (“FS”) for possible abusive conduct under Article 102 TFEU. 

On the same day, the ICA conducted a dawn raid at FS’ premises.

FS owns the incumbent passenger services operator Trenitalia.  Until April 2012, Trenitalia held a monopoly in high-speed passenger services in Italy.

FS currently enjoys a legal monopoly over access to the Italian railway network through its subsidiary and infrastructure manager RFI.  FS also manages access to passenger stations and maintenance facilities in Italy.

The opening of the investigation follows a complaint by Nuovo Trasporto Viaggiatori (“NTV”), the new entrant in the market for high-speed passenger services.

The opening of the investigation is based on the following allegations:

  1. FS is squeezing NTV’s margins by applying (i) high charges to NTV for access to the railway network and (ii) low prices to consumers for high speed passenger services.
  2. FS is subsidizing its high-speed passenger services through revenues from services for which it currently enjoys a monopoly.
  3. FS is refusing to grant NTV network access during peak hours and discriminates in favour of Trenitalia when allocating railway infrastructure capacity.
  4. FS is refusing to grant NTV access to a maintenance facility in Milan.
  5. FS is refusing to grant NTV access to spaces for advertising and for promoting commercial services in passenger stations.  FS is also denying suitable locations for ticketing.
  6. FS is discriminating against NTV by charging the latter higher prices than those charged to Trenitalia for advertising in passenger stations.
  7. FS is operating passenger stations inefficiently with a view to making NTV’s entry more difficult.

The ICA believes that these alleged conducts could be aimed at slowing down NTV’s entry and harming consumers.

The antitrust proceedings will last until July 2014.  In the meantime, depending on the evidence it has received from NTV and found during its inspection, the ICA may impose on FS interim measures to ensure that NTV is granted equitable and non-discriminatory access to infrastructure.

Albeit RFI and Trenitalia are separate legal entities within FS, the ICA’s investigation will reveal whether their commercial operations are managed under a common strategy aimed at excluding NTV from the market and penalizing the latter’s customers.

While the ICA’s investigation is pending and with a view to ensuring a fair and non-discriminatory access to the Italian rail network and related services, the new Italian Government headed by Enrico Letta will consider proceeding with the appointment of the President and the Commissioners of an independent transport authority.  The ten so-called Wise Men appointed by the President of Italy to recommend reforms as well as the OECD have already urged the Italian Government to do so. 

The Italian transport authority, albeit legally established in 2012 by the Monti’s Government, has not been operational so far due to lack of political will.